Some fundamental legal concepts are essential to the understanding of the doctrine of judicial precedent. These will be discussed in turn.
The ratio decidendi
Not every element or facet of a decision is binding on a judge in a consequent case.
Rather, it is the particular principle, rule or ruling of law contained in the decision.
This element of a decision is called the ratio decidendi. Still, not every statement of law or legal principle contained within a decision is binding in a particular case. Con-sequently, one must distinguish the ratio decidendi (that is, the binding element) from other legal principles in any particular judicial decision. The ratio decidendi is not located easily but may be defined as the principle or proposition of law stated by the judge to be applicable to resolving the precise legal issue before the court. It is there-fore, the legal rationale which the judge gives for the decision that he arrives at in a particular case.
Locating the ratio decidendi
Our definition of the ratio decendi is necessarily simplistic for it may be observed that the ratio is easily defined but less easily identified. While law students are expected to locate the ratio of a case with ease, such an exercise has boggled the minds of even eminent jurists. Often, for example, the ratio is confused with the dictum and some even maintain that there is no distinction between the two at all.18 Even judges, per-haps desiring to reach a different conclusion, have bickered as to what was the ratio or true meaning of a particular case.19 However, isolating the ratio is an essential task in sustaining the doctrine of binding precedent.
A much criticised but still well known and authoritative test for ascertaining the ratio, or as some suggest, determining what is not the ratio decidendi, is Wambaugh’s test of inversion. He instructs:
First frame carefully the supposed proposition of law. Let him then insert in the prop-osition a word reversing its meaning. Let him then inquire whether, if the court had conceived this new proposition to be good, and had it in mind, the decision could have been the same. If the answer be affirmative, then, however excellent the original
17 See, eg, London Tramcars Co Ltd v London County Council, above, fn 3.
18 For a good discussion of the difficulties in identifying the ratio, see, eg, Cross and Harris, Precedent in English Law, 4th edn, 1991, Oxford: Clarendon Press, Chapter 11.
19 See, eg, Re Anisimic [1969] 2 AC 147.
proposition be, the case is not a precedent for that proposition, but if the answer be negative, the case is a precedent.20
Accordingly, a proposition of law which fails the test is merely a dictum. As has been pointed out elsewhere, Wambaugh’s test not only fails to fit where there is more than one ratio in a case, but also does not assist greatly in finding the ‘ways and means of determining what proposition of law was considered necessary by the court for its decision’.21
Where a case is argued on more than one ground, it is even more difficult to locate the ratio. Despite there being more than one ground of argument, the case may be decided on only one of the grounds argued. In such situations, it is only this decisive ground which is binding, the other points of law being undecided. Notwithstanding, a case may contain more than one ratio where, for example, more than one reason or more than one judgment is given for the decision. A common illustration is found in the case of Read v Lyons and Co Ltd.22 One ratio decidendi in that case was that the well known rule in Rylands v Fletcher was not applicable to the escape of dangerous sub-stances which were in the defendant’s control. Another ratio was that the rule did not apply unless the plaintiff had an interest in the land affected by the escape.
In the landmark case from the newly constituted CCJ, AG v Joseph and Boyce,23 we can also discern more than one important ratio. Indeed, the CCJ was anxious to pro-nounce on important and controversial questions surrounding the death penalty.
First, the Court held that decisions of the Barbados Privy Council (the Committee responsible for making recommendations to the Governor General on the exercise of mercy) could be reviewed and redress obtained for any breaches of procedural rights inherent under the protection of law clause in the Barbados Constitution.
Secondly, the CCJ held that a person on death row had a legitimate expectation in the form of a procedural right to have an order of execution stayed until such time that his application to an international body had been heard and further, that the Mercy Committee had to consider (but not adopt) the opinions coming from that international body. This expectation arose from the State having ratified the relevant human rights treaty, including the individual right to petition and further, having held itself out as being prepared to allow citizens the right to access such international bodies. Such a legitimate expectation could, however, be defeated by an expressed overriding interest by the State.
Thirdly, in circumstances where there was a legitimate expectation that the death sentence would not be carried out, for example, as a result of a precedent that the sentence was not mandatory, or that the Pratt and Morgan five-year rule was in effect, an execution would amount to cruel and inhuman punishment and the sentence of death was to be commuted.
An interesting observation in the Joseph and Boyce case is that the CCJ, in particu-lar, the joint judgment of Justices de la Bastide (President) and Saunders, was grounded in arguments not introduced by counsel on either side, ie the doctrine of
20 Study of Cases (2nd edn) 17–18, cited in Jacobs v London County Council [1950] AC 369.
21 Cross and Harris, above, fn 18, p 56. Their own definition of the ratio is ‘any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him or a necessary part of his direction to the jury.’ Ibid.
22 [1947] AC 156.
23 CCJ App No CV 2 of 2005, decided 8 November 2006.
legitimate expectation. This raises a perhaps not insignificant point about how judges reach decisions and indeed their ability to make law (considered below). It is often assumed that the judge’s reasoning which grounds the ratio is always informed by the arguments and principles of law raised by counsels, but this may not necessarily be the case and indeed, belies the notion of the passive judge under the common law legal doctrine.24
The ratio is to be distinguished from the mere findings of fact and the judgment itself, the latter being formed by combining the legal reasoning and the particular facts of the case. The ratio should further be distinguished from res judicata or the adjudicated matter or judgment. This refers to the binding of the particular parties to the adjudicated matter. Subsequent parties are not so bound. In contrast, the ratio binds all subsequent courts. Thus, res judicata simply means that the matter has been finally determined.25
Obiter dicta
More important, the ratio should be distinguished from those statements of law which are ‘by the way’ or obiter dicta. Different categories of obiter dicta may be ascertained.
For example, a statement of law will be regarded as obiter dictum if it is based upon facts which did not in fact exist or were not material. In the Cayman case of Re BCCI,26 the Grand Court viewed its earlier decision on whether a bank’s interest in confidentiality included customers’ transactions as obiter and refused to follow it.27
A statement of law may also be obiter if the decision is not based upon it, although the statement may be based on the facts. Examples are statements of law contained in dissenting judgments or where the decision is contrary to the reasoning for some extraneous reason. In the landmark case of Hedley Byrne and Co Ltd v Heller Partners Ltd,28 the legal principle that the maker of a statement owes a duty of care to the listener was obiter since the giver of the advice in that case was protected by a disclaimer of responsibility.
Other remarks made by the judge, such as judicial pronouncements, or comments on non-legal matters like morals or public policy may also be obiter dicta. An example is where the judge is making an analogy between a hypothetical situation and the case before him, even where the given hypotheses is stated by the judge to be material.
In Peters v Marksman (Supt of Prisons) and AG,29 Mitchell, J of the High Court of St Vincent, in a case concerning cruel and inhumane punishment in prisons,
24 See page 36, para 77 of the judgment where it was said: ‘Unfortunately, the potential use of this doctrine [legitimate expectation] was not really argued before us . . . Accordingly, we were not specifically directed to the evidence on which any such expectation might be grounded. Nor were we addressed on the principles that would govern it . . . Notwithstand-ing the dearth of argument presented to us on this issue, there is a body of relevant material before us upon which we are able to draw.’
25 Note that even where the facts of an earlier case appear to be identical with those before the court, the judge or jury may not necessarily draw the same inference as that drawn in the earlier case.
26 In the Matter of Bank of Credit and Commerce International (Overseas) Ltd [1994–95] CILR 56.
27 An oft-quoted example is Lord Denning’s pronouncement on equitable estoppel in the defining case of Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130, p 133.
28 [1964] AC 465.
29 (1997) Carib LB 13, p 91.
commented, obiter, that ‘the time will come when the very overcrowding in the prison will be a basis for a constitutional challenge on the grounds that it is inhuman and degrading’. The substance of the matter concerned the constitutionality of the use of the cat-o’-nine-tails.30
The fact that a statement is made obiter does not mean that it is unimportant. Such statements often become the basis for future precedents. In particular, dissenting judgments may be used as the rationales for further decisions when precedents are overruled or, at minimum, cause future courts to re-examine significant legal questions.31
An obiter dictum which will no doubt form the basis for subsequent rationes is found in one of the first judgments handed down by the CCJ, AG v Joseph and Boyce.32 In this case, Justices de la Bastide and Saunders took the opportunity to pronounce on a ratio from the Privy Council on the five-year rule in Pratt and Morgan33 when opinions from international bodies were pending. This was not a live issue before the court, but the CCJ considered it important enough to pronounce upon it and did so with authority and deliberation, in so doing disagreeing with the earlier Privy Coun-cil judgments. It was clear too that the CCJ was mindful that its words had resonance, not only for Barbados, for whom, indeed, the rule was no longer applicable, but for all other Commonwealth Caribbean countries, even those which had not yet accepted the CCJ’s jurisdiction. It said:
By the amendment of section 15 of the Constitution, the State of Barbados no longer has the constraint of the Pratt five-year time-limit . . . Where Pratt is applicable, as it was in Barbados for these respondents, we would have been inclined to the view, if the issue of the five-year time-limit was still a live one before us, that where the time taken in processing a condemned man’s petition before an international body exceeded 18 months, the excess should be disregarded in the computation of time for the purpose of applying the decision in Pratt. In any event, protracted delay on the part of the inter-national body in disposing of the proceedings initiated before it by a condemned per-son, could justify the State, notwithstanding the existence of the condemned man’s legitimate expectation, proceeding to carry out an execution before completion of the international process.34
The Court then went on to invite the State to impose more reasonable time limits.35 Another excellent example is Rattray CJ’s statements in a case on labour law, Village Resorts v Green36 where he spoke on the evolution of employment law prin-ciples to ameliorate labour conditions, even to the point of inferring concepts akin to
30 Ibid, p 93. Mitchell J seemed to have in mind the developments on cruel and inhumane punishment in other circumstances. See the discussion of death row prisoners, below, p 135.
31 Another example is the powerful dissent of Lord Hoffman in Lewis v AG of Jamaica [2001] AC 50 (Privy Council), on the questions whether judicial review was available for the prerogative of mercy, whether final courts had to await the determinations of international legal bodies in capital punishment cases and whether poor prison conditions could constitute cruel and inhumane treatment. Interestingly, on the latter point, the majority found that prison condi-tions could ground a constitutional challenge for cruel and inhumane punishment and this seemed to have been influenced by an obiter statement in Peters v Marksman, above.
32 Above, fn 23 (Barbados).
33 Pratt and Morgan v AG of Jamaica (1993) 43 WIR 340. The rule states that five years and more on death row constitutes cruel and inhumane punishment.
34 Ibid, para 126, p 57.
35 Ibid, para 139, p 62.
36 (Unreported) No 66 of 1997, decided 30 June 1998 (SC Jamaica).
unfair dismissal. This general premise can now be seen to have formed the bases for future landmark developments in labour law in Jamaica. For example, in the case of Jamaica Flour Mills Ltd v Industrial Disputes Tribunal and National Workers Union,37 the Privy Council expressly adopted it in finding, in what may be labelled a judicially activist mode, a semblance of unfair dismissal doctrine in Jamaica, despite the absence of statute on the issue and in the face of what was intended to be a non-binding industrial relations Code.
Another example of a famous dissenting judgment is that found in Riley v AG38 that undue delay on death row could violate the Constitution by constituting cruel and inhumane punishment. This was later to become the controversial but well established principle in the Pratt and Morgan line of cases.
In view of the above, Lord Steyn’s remarks in Fisher v Minister of Public Safety and Immigration et al39 certainly have resonance:
A dissenting judgment anchored in the circumstances of today sometimes appeals to the judges of tomorrow. In that way a dissenting judgment sometimes contributes to the continuing development of the law.
Statements of law made per incuriam and per curiam
Certain decisions may be deemed to have been reached per incuriam. This means, literally, through a lack of care. It occurs, for example, where some relevant precedent, legal principle or statutory provision which would have affected the outcome of a decision, had it been considered, was not brought to the attention of the court.
Perhaps understandably, there are few examples of judgments delivered per incu-riam. The principle is limited in operation and there is a high threshold to cross before a judgment will be declared to be per incuriam, hence the few decisions labelled in that way. As directed in the case of Morelle v Wakeling,40 decisions are only to be considered as per incuriam where they have been given in ignorance or forgetfulness of some pertinent statutory provision or binding authority which leads to inaccurate legal reasoning.
The doctrine has, however, been extended to other situations, such as where a case is not fully argued, or where the court seemed to have misunderstood the law, made a manifest slip or error, or was unaware of relevant policy considerations. In Attorney General v Financial Clearing Corporation,41 for example, the Bahamas court ruled on the question of self-incrimination, in a matter contesting the constitutionality of a statute designed to compel disclosure of financial information for regulatory purposes.
However, the fact that under the Constitution self-incrimination is only protected against in criminal, as opposed to civil matters, was neither brought to the attention of the court nor addressed by them. These were essential aspects of the issue which should have been considered.
A court may also make statements per curiam. These are relevant to the issue at hand and adequately informed by the legal principles surrounding the case. They are
37 PC Appeal No 69 of 2003, decided 23 March 2005.
38 [1983] AC 719.
39 [1998] AC 673 (Privy Council, The Bahamas) at pp 686–687.
40 [1955] 2 QB 379, p 406.
41 (CA, The Bahamas) No 70 of 2001, decided 8 October 2002.
not, however, part of the ratio decidendi as these are not statements of legal principle essential to determining the case. As such, they have no binding effect. Often, these statements attempt to give direction or policy guidance for future cases. For example, in Abbot v AG of Trinidad and Tobago,42 the Privy Council, in deciding that undue delay on death row did not constitute a violation of the constitutional right to life, neverthe-less cautioned per curiam: ‘The President ought not to issue his warrant for carrying out the sentence of death, until after the advisory committee has considered the case and proffered its advice to the designated Minister and the designated Minister has tendered his own advice . . . to the President. A person aggrieved by any failure to perform those duties with reasonable dispatch would be entitled to apply to the High Court for an appropriate remedy in public law.’43